APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)) from the order of the trial court in the Twelth Judicial Circuit, Will County, suppressing a statement made by defendant Steven Zach, pursuant to a pretrial motion to suppress two statements which defendant made to police. The trial court suppressed one of the two statements.
On appeal, the State contends that the trial court erred in suppressing defendant's statement. Sergeant Watters of the Will County sheriff's police testified at the hearing on January 10, 1978, that he "directed" Deputies Petersen and Gans to "pick up Steven Zach at his residence." Petersen also testified that Sergeant Watters had "advised" Gans and Petersen to go to defendant's residence and there, to "request" the defendant to come to the sheriff's station to be interviewed. No arrest warrant had been issued for defendant. The two deputies arrived at defendant's apartment, identified themselves and asked defendant to come to the sheriff's station to be interviewed about the stabbing of Donald Nickel. Defendant stated he would come to the station but asked if he could drive his own truck there. Deputy Petersen telephoned Sergeant Watters to ask if defendant would be allowed to drive himself to the station. Watters informed Petersen that this would be all right. Defendant then drove to the sheriff's station. It is not shown of record whether he was closely followed by the deputies, but when he arrived at the station he was introduced to Sergeant Watters.
Sergeant Watters took defendant to his office and told defendant that he wanted to interview him. The sergeant also then stated to defendant that he was not under arrest. Initially, defendant and Watters discussed subjects not related to the stabbing incident. Watters then asked defendant if he had any knowledge about the stabbing. Defendant responded that he knew the principal, Terry Renslow, and that he had worked for Renslow and had problems with Renslow. Watters then said that he felt defendant knew something about the stabbing. At this point, defendant said, "Man, I was there; but if I tell you what I know, I'm dead." It is this statement which the judge ordered suppressed.
After defendant made his first statement, herein referred to, Watters told defendant that he had made an incriminating statement and then, for the first time, advised him of his constitutional rights. Defendant's second statement, which was not suppressed by the trial court, was made after defendant had been advised of his constitutional rights.
In ordering the suppression of the first statement made by defendant herein referred to, the trial court said:
"I think the first thing you have to determine, I suppose, is, it goes to both whether the police think he is in custody or he thinks he is in custody. I certainly think Mr. Zach had a reason to think he was in custody; two police officers come up into DuPage County to get him.
And I think there is evidence it was his state of mind when he asks * * * `Can I take my truck?' Now, if he didn't think he was in custody or if he thought he had freedom to do what he wanted to do, he wouldn't be asking the officers, `Can I take my truck?' He will tell them, `I will drive down.'
On top of that, it also puts into some question, in my mind, whether they really what they had been told, because rather than tell him to take the truck, they said, `Let me call Watters and see if I can let you go to take the truck, your own truck.' I might suggest the size of Officer Gans, if he came up and asked me to go somewhere, I would go.
* * * The State has not sustained their burden in my eyes to show that the defendant had the freedom to go where he wanted to go, * * *."
After defendant was advised of his constitutional rights, and upon leaving the sergeant's office, defendant made a statement to the effect that everybody in the case was lying. The trial judge held that this second statement was voluntary, noting that there was no evidence of the police attempting to elicit the second statement.
In this case, we are confronted with the basic consideration which is popularly described as the Miranda warning. In Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L.Ed.2d 694, 706, 86 S.Ct. 1602, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The procedural safeguards referred to in the Miranda case specify that prior to questioning a defendant, he must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has the right to the presence of a retained or appointed attorney.
In the instant case, it is undisputed that the prosecution failed to use these procedural safeguards prior to the time defendant made his first statement. It is also undisputed that defendant's first statement was made in response to questioning by law enforcement officers. The only issue, therefore, before us is whether the defendant was in custody at the time he made the first statement, or had otherwise been deprived of his freedom of action in a significant way. We also note that, in accordance with Illinois law, the burden of proving that defendant was not in a custodial situation and had not been deprived of his freedom of action in any significant way is on the State. Section 114-11(d) of the Code of Criminal Procedure states that:
"The burden of going forward with the evidence and burden of proving that a confession was voluntary shall be on the State * * *." (Ill. Rev. ...